Justice Joel Ngugi has made a land mark ruling allowing men to have custody of children after an estranged marriage.
The judge ruled that it was wrong for the lower court to assume that the father was only meant to be the breadwinner and not a primary caregiver for his child.
“With tremendous respect, I find this reasoning to be dangerously problematic. It does no favors to women to espouse these kinds of stereotypes. Moreover, relying on the stereotypes to reach a verdict on an individual and specific case is unfair to the parties concerned,” part of Justice Ngugi’s ruled.
The ruling emanated from a case where an estranged couple which parted ways after the man allegedly caught his wife in their matrimonial bed with their house boy.
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The plaintiff, named JKN, lost custody of his two children in 2014. The magistrate’s court then ruled that it was impossible for him to have child custody as he was required to be out fending for the family.
The magistrate ruled that it was safer for the children’s mother to take custody rather than them ending up under the care of house helps.
The court ruled that the reasons for separation could not be the determinant factors used by spouses to deny each other custody of the children.
He said that the Children Act stated that the custody of the children should either be shared or joint.
This ruling comes just months after the court declared section 24 and 25 of the Children’s Act unconstitutional stating that the child’s cest interest as prescribed by the constitution under article 53 override the provisions prescribed under the Childrens Act
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